CEO 76-188 -- October 25, 1976

CONFLICT OF INTEREST

ASSISTANT SCHOOL SUPERINTENDENT PURCHASING SURPLUS SCHOOL PROPERTY FROM SCHOOL BOARD

To: (Name withheld at the person's request.)

Prepared by: Roger Merriam

SUMMARY:

Although it was ruled in CEO 76-145 that no prohibited conflict of interest is created where municipal employees purchase surplus city property sold at public auction, in that situation the employees' agencies were municipal departments which have no direct role in policymaking decisions of the governing body of their political subdivision. A significant distinction is deemed to exist where an assistant superintendent for business affairs of a school district purchases from the district a house sold as surplus. By virtue of the assistant superintendent's position and rank in the school system and his proximity to the governing board of that political subdivision, he has influence and advantages not enjoyed by employees of individual schools within the district. Accordingly, a prohibited conflict of interest is deemed to be created, pursuant to Florida Statute s. 112.313(7)(a)(1975) prohibiting a public employee from having a contractual relationship with an agency subject to the regulation of his agency, where such assistant superintendent purchases from the district a house sold as surplus.

QUESTION:

Would a prohibited conflict of interest be created were I to purchase surplus property from the county school board which employs me as the assistant superintendent for business affairs?

Your question is answered in the affirmative.

We understand from your letter of inquiry and attachments thereto that during the 1975-1976 school year the area vocational technical school of your school district constructed a small frame house as a classroom project. In May of 1976 the director of the school wrote to the school district superintendent requesting that he place before the school board the matter of declaring the house surplus property so that it could be sold. Acting in your official capacity as assistant superintendent for business affairs, you advised the vocational technical school of the proper procedures to be followed in order to dispose of the house, i.e., that it first must be declared surplus by the school board and then sold in accordance with bidding procedures set forth in Florida Statute s. 274.06. The house was declared surplus by the board at its June 15, 1976, meeting, and subsequently was advertised for sale to the highest bidder on three consecutive days in the local newspaper. You submitted the highest bid, and on August 24, 1976, the school board accepted your bid subject to approval by the school board attorney. You now wish to know whether a prohibited conflict of interest would exist were you to purchase the house from the school board.

The Code of Ethics for Public Officers and Employees provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . . [Fla. Stat. s. 112.313(7)(a)(1975).]

The above-quoted provision thus prohibits a public employee from having a contractual relationship with an agency regulated by his public agency. The term "agency" is defined in the Code of Ethics to mean

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision therein; or any public school, community college or state university. [Fla. Stat. s. 112.312(2)(1975).]

The district school system, of which you are an employee, clearly is regulated by the school board. Although the two do not constitute separate agencies within the definition contained in s. 112.312(2), we nevertheless find the above-quoted s. 112.313(7) to be applicable, as administrators in the school system are regulated by the school board, the agency head.

Although we have ruled previously that no prohibited conflict of interest is created where city employees purchase surplus city property sold at public auction (see CEO 76-145), we perceive a significant distinction in the instant case. In the aforementioned situation the employees' agencies were municipal departments which have no direct role in policymaking decisions of the governing body of their political subdivision. By virtue of your position and rank in the school system and your proximity to the governing board of that subdivision, however, you have influence and advantages not enjoyed by employees of individual schools within the district. This distinction is incorporated within the definition of the term "agency," wherein a public school is listed as constituting an agency in its own right, distinct from the political subdivision of which it is a part. Accordingly, we find that a prohibited conflict of interest would be created were you to enter into a contractual relationship with your own agency, the district school board, for purchase of a house sold as surplus.